Monday, September 18, 2006

Opponents of evolution abound, but rarely do we see one who isn't religious. What I don't understand is the opposition to evolution from religious people.

The assumption that evolution is (as our dear friend the Frumteens Moderator put it) "the only existing apologetic for atheism" is obviously a non sequitor. If evolution were to be falsified tomorrow, atheists would be in the same position as believers -- they both would have no scientific explanation for how man came about. But from the perspective of someone who doesn't believe in G-d because there is insufficient evidence of his existence, he is no worse a position that I (an Orthodox Jew) am.

And that's why I don't understand the crusade over evolution. Evolution says nothing about G-d (although it does contradict a literal reading of the Torah). A believer can argue that the world was created in a way to make it appear old (although this argument does create theological difficulties) and therefore discount evolution on theological grounds.

Attacking evolution makes creationists appear desperate and foolish because anyone even minimally versed in the sciences will know that evolution is a rock solid principle. Wouldn't it be better for someone like Frumteens to just respond that evolution is scientific and is built on a different set of assumptions that religious Judaism? What is actually gained by attacking evolution?

Friday, September 15, 2006

So says Larry Derfner in yesterday's Jpost. In Derfner's eyes a judge with a Jewish impulse (which is basically synonymous with a liberal impulse) will extend democracy to protect insecure minorities. This argument presumes that the function of the judge in a democracy is to afford democracy to the minorities who would be swallowed up by the majority if left to their own devices.

Now if any of you have read my last post, you'll know that I don't oppose judicial review per se. In fact, I cannot deny that the contramajoriatarian difficulty is illusory because the judge is empowered to overturn the will of the majority if they violate the compact they consented to make the supreme law of the land. The difficulty only adheres when the judge exceeds his power and nullifies legislative action without constitutional support.

Barak, who is a brilliant legal jurist by any measure, argues that democracy is more than simply the will of the majority and contains substantive elements such as (among others) the rule of law, separation of powers, and human rights. The goal of the judge is to balance the procedural element (majority rule) with the substantive elements (human rights). These elements are fundamental and not subject to opinion polls.

I don't need to explain my problems with the above argument. I might agree that democracy is substantive in nature, but I firmly disagree with the proposition that unelected judges are better equipped to determine fundamental rights than anyone else. On what basis should the judge decide that the substantive outweigh the procedural violations?

My biggest problem with Israel's "constitutional" order is the lack of judicial power to overturn laws in the first place. Barak acknowledges that Israel lacks a formal constitution, but proffers the existence of an immutable, unwritten constitution embedded in the Basic Laws. Barak claims that when the Basic Laws are contradicted by ordinary legislation, the legislation is void.

Barak envisions similarities to our system, where the Constitution reigns supreme (even more to the point he extrapolates the inference in Marbury that created judicial review in the US to the situation in Israel). But there's a piece missing: even if we assume that basic laws are extra-legislative (a weak proposition), on what basis can the courts overturn laws? Not every country with a democracy has judicial review. For example Switzerland's courts lack judicial review, and the Swiss don't seem to have fallen prey to despotism. For judicial review to exist, the Basic Laws must be supreme and courts must be authorized to enforce its superiority.

But Derfner would want Barak's successor to continue in this tradition. While I am all for protecting minority rights from the tyranny of the majority, I am unaware of how a judge's discretion could be cabined absent a written constitution. The fact that Barak could impute legal superiority in the Basic Laws and then infer from that superiority that judges could enforce the laws over ordinary legislation shows the extent of the exceptional jurist's creativity. But creativity is a double-edged sword. It could be used to justify anything. How can we protect the majority from the tyranny of the minority?

As an aside, Derfner is just plain wrong on some points. For example he notes that "[i]f not for the US Supreme Court, blacks in the South might still not be able to vote. " This statement is patently wrong. The right to vote without distinction of the basis of color was guaranteed by the 15th and 24th Amendments of the Constitution and by the congressional legislation such as the Voting Rights Act of 1965. The courts had little to do with it.

I also find it amazing that Derfner neglects to mention a great Jewish justice who did not participate in the "Jewish tradition" of neglecting the will of the majority: Felix Frankfurter. Frankfurter is considered one of the most conservative justices of the 20th century because he consistently deferred to the elected branches on policy issues. Did Frankfurter fall outside of this tradition, or is it possible that the Jewish approach to judging is not as monolithic as Derfer would have us believe?

Thursday, September 14, 2006

Over the next few posts I intend to outline my political philosophy as it relates to American politics. My philosophy is certainly conservative as it's defined today, although I do not toe the party line on every issue. I intend to lay out my views on law, economics, moral legislation, foreign policy, the purpose and function of government and more. I decided to start with law, since that's the easiest field for me to explain and will probably be the most fully developed position I have.

What is the purpose of law? What is the function of judges in our legal system? And how does the Constitution interplay with democracy and law in general?

Without getting too esoteric, law is designed to facilitate beneficial relationships between parties by ensuring that certain forms of conduct will lead to clear, defined and predictable consequences. When two parties make a contract, the law protects both parties in the case of a breach. The law's protection affords both parties the opportunity to enter into that contract and to rely on the law to ensure that the contract is upheld, or that the breaching party will be subject to sanctions.

In every western legal system, judges are entrusted with interpreting the law. The United States has a fairly well delineated separation of powers, which grants the legislature the power to make laws, the executive branch the power to execute them, and the judiciary the power to interpret them.

The underpinnings of the legal system is the idea of consent, which is rooted in our democratic/republican system of government. The people choose their representatives, who then create and execute the laws. The people consent to those laws by voting (or by choosing not to vote) and everyone is bound by them.

The problem is when the Constitution runs contrary to the will of the people as evidenced by their elected representatives. Alexander Bickel called this problem the "countermajoritarian difficulty." How should a judge interpret the Constitution and the statute in question if the result will be to nullify the statute and therefore the will of the people?

In my mind, the difficulty is negated if the judge interprets the Constitution faithfully according to a legitimate interpretive methodology. If we presume that the Constitution is binding and is superior to any legislative-made law, then there's no difficulty. The Constitution wins out even if the present will is to enact a law that opposes the Constitution. As long as the Constitution is morally binding on the citizens of the United States, they cannot legislate contrary to its express provisions.

Since the purpose of law is to facilitate relationships by creating a public record of legitimate and illegitimate conduct, laws must be interpreted based on their plain meaning. I'm a textualist, which means I support interpreting legal texts according to their plain meaning. Intentionalism, which means interpreting a text based on the author's intent, confines the text to the less public intent of the author, which mitigates the public nature of law.

When interpreting the Constitution, I am an originalist. What that means is that I support interpreting the text based on the original public meaning, which in the nomenclature I've been using until now is the plain meaning of the text when the Constitution was enacted (or ratified). Originalism is merely the logical extension of textualism in that both search for the plain meaning of the text based on the time period during which the text was formulated.

An originalist judge does not run into the countermajoritarian difficulty when he is faithful to his methodology. If the plain meaning of the text is the proper interpretation of a text, and the text is binding to the extent that it negates the contramajoritarian difficulty, then the judge did not violate democratic norms by negating the will of the majority. However if the judge interprets the Constitution based on an illegitimate method, he is circumventing the will of the people and is "actively" legislating, because it's not the Constitution that is negating the will of the people, but rather the judge. Unelected judges overturning the will of the people would seem to run afoul of the democratic underpinnings of our republic.

One thing I will admit is that law is often not determinate. Sometimes we cannot find the plain meaning or there might be more than one meaning. In that case judges are allowed discretion, but unlike Randy Barnett I would impose a presumption of constitutionality instead of a presumption of liberty. Laws enacted by the people should not be overruled unless on the basis of clear evidence that the Constitution's original plain meaning opposed the law.

Would I consider any other method legitimate besides for originalism? As opposed to Robert Bork, I could envision other methodologies that would fit with my conception of law, and would place them on par with originalism. I have yet to see any other interpretive methods that fit this description, but they could be out there or perhaps they haven't been discovered yet. Maybe.

I do know that pragmatism or moral interpretations are flawed from the get go. Pragmatism, put simply, is the idea that constitutional interpretation cannot be practically guided by higher principles, and all that is left is judges weighing the costs and benefits of a specific law. I disagree with Richard Posner that originalism is untenable, and therefore I view his pragmatic enterprise as nothing more than judges legislating (something he readily admits, which I give him credit for). Ronald Dworkin's moral interpretation is flawed for a different reason. Judges are appointed and elected to interpret law because they are more knowledgeable than the average citizen. But judges are no more qualified than anyone else (in fact they may be less qualified than some people) to make moral determinations.

Dworkin's moral interpretation is an admission that legal texts can have different meanings. Originalists admit that as well. But unlike Dworkin, who requires the judge to decide between competing interpretations based on moral philosophy, serious originalists allow constitutional constructions that do not contradict the original understanding of the Constitution as a whole. A judge should use his discretion, which is something that is usually rooted in intuition and experiences, but not impute his moral views into the Constitution.

Some people argue that originalism is just conservative activism in more respected clothing. In other words conservatives support originalism because it leads to the outcomes they most often desire. Even if this contention is true (which it isn't) I fail to see the problem. If the only flaw with the originalist enterprise is that people suscribe to it because it leads to conservative outcomes, then I don't see a problem. What's wrong with choosing an ideology based on outcomes? The problem is when people decide individual cases based on outcomes. If a person binds himself to a certain methodology, and sticks to it through and through, he'll likely come across situations where his political preferences are trumped by his interpretation of the law. As long as he locks himself into a methodology, the interpretative method is not flawed based on its reaching the best outcomes in most cases.

I've simplified my views to a degree and left a few points out (for example the interplay between originalism and precedent), but I believe my basic legal philosophy has been laid out.

Wednesday, September 13, 2006

Since the end of hostilities in Lebanon, human rights organizations have been collecting evidence to bring war crimes charges against various Israeli officials. Could Israelis be tried for war crimes and crimes against humanity?

In today's world there are three mediums were such cases could be brought: the International Criminal Court (ICC), ad hoc UN tribunals (such as those used to prosecute Milosevic and Rwandan leaders), and European countries which recognize that war crimes and crimes against humanity are under universal jurisdiction, which means that any country could try those cases.

Israel is not a signatory to the Rome Statute of the ICC, and therefore none of its nationals could be tried in the court unless they committed the crime in the territory of a state which did ratify the treaty (Article 12(2)(a-b). Lebanon is not a signatory, so the ICC, by its own terms, cannot execute jurisdiction over any Israeli citizens.

Ad hoc tribunals could be created under Chapter VII of the UN Charter but have gone out of vogue now that the ICC is in operation. Plus, the US would undoubtedly veto the creation of any such tribunal, even if opponents of Israel could get the rest of the Security Council to agree.

Countries that consider war crimes to fall under universal jurisdiction are the best forums to bring these claims. It's interesting to note that Israel, in the Eichman trial, was one of the first countries to assert universal jurisdiction, so no one can claim that universal jurisdiction is a liberal European creation.

Belgium became famous after its problems relating to the prosecution of Ariel Sharon in 2003, and its subsequent amendment to the universal jurisdiction law that cut back on the scope of that jurisdiction. The case became moot once the law was amended to limit its application to crimes committed subsequent to the enactment of the universal jurisdiction law. The court also dismissed the case based on the idea of diplomatic immunity, which immunizes a sitting head of government (or state) from prosecution. Belgian diplomats understood the political ramifications of an unbridled universal jurisdiction law, and quietly put the extensive conception of the law to sleep.

However, even with the amendments Belgium still allows prosecutions of officials who do not have immunity in cases where the alleged crime occurred subsequent to the law's enactment. Moreover, other countries have similar laws. So could Israeli generals, or even Amir Peretz, be tried in England or Belgium?

In theory probably. In practice it's unlikely (to say the least) that an Israeli general will tried in England, a country which is currently fighting a war in ways that I'm sure are not pristine by human rights advocates' standards. Furthermore the political fallout from trying a high ranking Israeli official in a European country is probably too great for any country to shoulder.

In 2005 Doron Almog refused to step off an El Al plane after he was tipped off of his impending arrest. In my mind, if Almog was arrested, England would probably have pardoned or released him in a similar way or possibly even modified their law, as Belgium did in 2003. It's hard to imagine a democratic country trying a fellow democracy's generals for crimes they didn't commit against the former's citizens or in its territory.

In practice universal jurisdiction laws only work against dictators and weak countries. The political ramifications of trying former Congo leaders are minimal, so the country is willing to prosecute. But trying a general of a first world democracy with an extremely powerful backer is a whole different ballgame and could lead to a game of tit for tat. None of that is in Belgium or England's best interests.

Monday, September 11, 2006

Having just finished davening Shacharis because President Bush's visit to the firehouse in the Lower East Side blocked my access to shul, I decided to write about how 9/11 affected me.

Just like this morning, I went to a later minyan that bright sunny morning. At about 9:10 I was finishing davening when my chavrusa came into the shul/beis medrash and informed that that two planes hit the two towers. I thought that was pretty scary and figured the crashes might have been intentional, but I did not understand the magnitude of the collisions. I imagined two single engine jets bouncing off the side of the buildings, with only minor casualties.

I came upstairs and went into Morg Lounge (a lounge in one of YU's dorms) and saw the two towers burning. Even then I didn't quite comprehend what was going on. Yeah I understood people probably died, but it didn't really hit me that the people above the crash sites probably were going to die. And of course I never dreamed the towers would collapse. The Twin Towers were designed to withstand all types of elements, including a plane crash.

I watched a little and then went to learn. I couldn't really concentrate so I went back up to watch. The process repeated itself a few times, until my roommate came down and told me one of the towers fell. That shocked me.

I grew up almost idolizing the Towers. They were a symbol of strength, a symbol of New York and by extension America. Bring down the Towers represented bringing down New York. I had great pride in New York and despite its myriad flaws, New York was my city and the America was my country.

Never before had I experienced an attack on my country. Sure I considered Israel my country as well and I intellectually understood that Israel was constantly under attack from terror. I had seen pictures of the Sbarro bombing (a place I frequented during my two year tenure in Yeshiva in the Old City of Jerusalem), and I had experienced terror attacks in Jerusalem when I was there, but nothing compared to attacking a symbol of the country I grew up in.

By the time I made it upstairs the second tower had fell. Frankly I don't remember what happened after that. I do remember going to shiur and having no idea what was going on. I've spaced out and slept through shiurs, but I've never sat somewhere in shock for almost two hours having no idea what was going on. The day's events almost seemed surreal.

As I walked back from my failed attempt to go to shul today I thought about how my minor inconvenience paled in comparison to the horrible experiences the victims and survivors faced. As I stood by a barricade waiting to pass, I listened to my fellow citizens complain about being delayed a few minutes. I can't judge people without being in their place, but I think it's not the end of the world if someone comes fifteen minutes late to work.

Movies like United 93 and World Trade Center remind us how terrible the morning of September 11, 2001 really was. The minor inconveniences, such as having to wait a few minutes, or even the major sacrifices, whether by soldiers in Iraq and Afghanistan, or by ordinary citizens through the minimization of their liberty are just small prices we have to pay in memory on the 9/11 victims and to ensure that something like that never happens again.

NOTE: I am not taking a position on whether the war in Iraq makes us safer or is part of the war on terror. I am also not arguing that the NSA wiretapping program or secret prisons are a good idea. What I'm saying is that as we remember the horrible events of 9/11 we need to understand that some sacrifices are necessary to protect our freedom. The thing about freedom is that it is never free.